Category Archives: First Amendment

A bill making its way through the South Carolina legislature would place a near-total ban on abortions, prohibiting the procedure except in cases where the life of the mother is at risk.

The measure, a draft of which is currently being considered by the state senate's Medical Affairs Committee, would also criminalize helping a person obtain an abortion including providing information about how to obtain an abortion. Under the current bill draft, a person who provides information could be prosecuted if they know the information "will be used, or is reasonably likely to be used for an abortion" and could face up to 25 years in prison.

Indiana-based attorney James Bopp, general counsel for the National Right to Life Committee, which opposes abortion rights, helped draft the South Carolina bill.

National Right to Life wants to restore full legal protection to the unborn under the law, Bopp said. Since Roe v. Wade has been overturned, we can now do that.

But some legal experts think parts of the bill are on shaky legal ground and may violate the U.S. Constitution.

This particular law is constitutionally overbroad, Eugene Volokh, a law professor at the University of California, Los Angeles who specializes in First Amendment law, said. It covers speech that is constitutionally protected.

According to Volokh, the "aiding and abetting" portion of the draft bill would have more legal standing if it was narrowly focused on illegal abortions in the state.

If abortion is illegal and Supreme Court has said that it could be made illegal, then that does allow punishing at least certain kinds of speech related to abortion just like this is true with all crimes, he said.

The courts have repeatedly decided speech that encourages or solicits a person to commit a crime is not constitutionally protected, Volokh said. Just like assisting in a robbery could carry criminal penalties, he said, assisting in someones illegal abortion could legally carry penalties, too.

Jessie Hill, a law professor at Case Western University, said the problem with the South Carolina bill is it doesnt seem to distinguish between illegal and legal abortions.

For example, there's nothing that says specifically that the abortion being facilitated or about which information is given, Hill said. It doesn't say that that has to be an illegal abortion.

That, Hill said, could lead to punishing people who provide information about how to get abortions in other states, like North Carolina, where the procedure is legal.

If the abortion services are legal in those other states, then giving information about that is not normally a crime. And it can't be, Hill said. The states can't generally apply their laws beyond their own borders in that way.

Hill said criminalizing speech about a legal procedure likely violates the First Amendment since its not inciting or encouraging someone to commit a crime.

Bopp, of the National Right to Life Committee, maintains the bill is focused on illegal abortions and is fully constitutional.

South Carolina only has authority over acts committed in their own state," Bopp said. "And this would be an illegal abortion, which means an abortion illegal under the laws of South Carolina. If an actual abortion occurred outside the state, then it's not covered and it can't be covered.

The Medical Affairs Committee has scheduled a full-day of public input on South Carolina abortion legislation post-Roe for Aug. 17. The draft measure could be changed before going before the full state Senate for a vote.

Excerpt from:
Draft version of SC abortion bill raises concern among First Amendment experts - WUNC

Stuart N. Brotman| Guest columnist

Tennessee Voices: A conversation with Stuart Brotman

University of Tennessee atKnoxville media law and journalism professor Stuart Brotman spoke with Tennessean opinion editor David Plazas.

Nashville Tennessean

With high school teachers nationwide now in the process of planning their return to begin a new academic term, a new piece of valuable summer homework for them is recommended. Its the survey results from the Knight Foundation Future of the First Amendment project. This is the eighth such survey conducted since 2004, and it deserves a close reading and a plan of action for when students return to the classroom.

Viewed over time, there can be a sense of optimism that both American high school students and their teachers have maintained a consistency over many years regarding the notion that people should be allowed to express unpopular opinions. Yet that view now is clouded when they are confronted with offensive or threatening speech. In these instances, the level of support drops below half. And only 57%in this survey indicated that news organizations should be able to publish without government censorship.

Its also revealing that the survey found that gender, raceand ethnicity are related to the willingness of students to say that the First Amendment goes too far. As the Knight Foundation report noted, Students in racial minority groups, women and non-binary students are less likely to feel they are protected by the First Amendment than white and male students.

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Two concrete measures can be adopted now by high schools across the country that would help promote a greater understanding and appreciation for the core First Amendment values offreedom of religious thought and practice; freedom of speech; freedom of the press; freedom of assembly; and freedom to petition governments about grievances.

First, teachers should incorporate discussion of these fundamental democratic values in a variety of social studies classes. Where possible, a structured course on the First Amendment should be added to the existingcurriculum. The Knight Foundation has found that the latter approach can be especially beneficial, since First Amendment coursework can enhance student support for free speech rights.

As schools begin to focus more on diversity, equityand inclusion concerns, they also should be aware that there may be disparities in perceptions about First Amendment freedoms, as the survey noted. Consequently, any curriculum activities in this area should reflect a level of nuance that addresses the concerns of those who feel excluded. Openly discussing these differences can be a powerful real-time demonstration of why a free speech environment is important not just to some students, but to all.

Recent headlines focus on state and local government pressure to remove certain areas of instruction and discussion from our public schools, including reading selections where uncomfortable topics or language may be included. It would be refreshing to see a comparable level of attention including by parent groups asserting greater influence in what their children are taught devoted to what might be beneficial for students to learn more about, rather than purportedly harmful.

Those who believe increasing inclusive civics education is vital to sustaining a democratic society now have a window of opportunity to voice their support for a more robust First Amendment teaching approach in the upcoming school year.

Stuart N. Brotman is the author of "The First Amendment Lives On." He is a distinguished professor of journalism and electronic media at the University of Tennessee atKnoxville.

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Let's add the First Amendment to the nation's back-to-school checklist - Tennessean

Virginia Commonwealth University boasts that its fraternity and sorority community has enhanced the lives of thousands of men and women over the last 50 years. As a reward for this half-century of service, VCU will ban all first-semester students from joining these groups. FIRE calls on VCU to abandon its senseless violation of students First Amendment rights.

VCUs deferred recruitment policy, set to take effect Aug. 1, bans all students without 12 credits completed at the university from joining all social fraternities and sororities, with no exceptions for transfer students or non-traditional students. By excluding these students from Greek life [r]egardless of incoming credit status or prior affiliation, VCU bans student leaders of chapters at other universities, second-semester seniors about to graduate, and even the president of the United States from rushing a VCU fraternity, merely because they did not complete enough credits at the university. While transfer credit hours will count toward your degree, they will not toward your eligibility to join Greek life.

Why the draconian restriction?

Dont ask VCU, which neglected to list any reason for banning the approximately 6,000 first-semester and transfer students from joining any of its 40 Greek chapters, but not university athletic teams, music programs, or 500 other student groups. Compounding the nonsense, VCU imposes this mandate while extolling the virtues of Greek life, proclaiming to all students how joining these groups can help you find your niche at VCU, offer academic assistance and support, encourage you to be active in student organizations and community service, open doors for opportunity, [and] assist you in developing social skills. Yet VCUs newest students those who stand to gain the most from the plentiful benefits of joining these groups are precisely those the university locks out.

VCUs newest students those who stand to gain the most from the plentiful benefits of joining these groups are precisely those the university locks out.

In FIREs letter to VCU, we explain how the First Amendment does not tolerate such sloppy, paternalistic bans on students freedom of association. No less an authority than the United States Supreme Court has affirmed the individuals right to pick his own associates so as to express his preferences and dislikes, and to fashion his private life by joining such clubs and groups as he chooses. After all, the freedom of association has, for centuries, been at the heart of the American system of government and individual rights, and protects the right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. This includes a college students right to join fraternal brotherhoods and sisterhoods.

State university limits on this fundamental right must be narrowly tailored to further compelling institutional interests, and must not unnecessarily burden students associational freedoms. VCUs ban does not cut it.

There is no Greek Life exception to the First Amendment.

If this ban is designed to foster students well-being, it falls far short of directly advancing this goal. This is because the very same students that VCU baselessly claims are not fit for Greek life are nevertheless free to work full-time jobs, play Division I sports, and pour their time into hundreds of other student clubs. You dont need to be a Supreme Court justice to see the issues with limiting students First Amendment right to join Greek life while allowing these same students to do more rigorous and time-intensive activities. Thats like a dry campus telling students they must avoid beer and wine, but hard liquor is totally fine.

Apparently VCUs motto, Make it Real, doesnt apply to students First Amendment rights. There is no Greek Life exception to the First Amendment, as public universities must afford students the opportunity to associate with all its student groups. College students selecting extracurricular activities are not children on playdates who require babysitting from watchful administrators they are adults, bestowed with their full array of First Amendment rights.

FIRE calls on VCU to allow all students to reap the full extent of the benefits of Greek life and afford them enjoyment of the full extent of their First Amendment rights by rescinding this deferred recruitment policy.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If youre a faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If youre a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).

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Virginia Commonwealth University plans to violate the First Amendment rights of thousands of students with deferred recruitment policy - FIRE -...

American Promise is a nonpartisan group that is fostering a grassroots movement focused on reducing ... [+] the influence of money in politics.

Lobbying has been a part of U.S. politics since our nations early days, but campaign spending has ballooned to new heights in the decade since the U.S. Supreme Courts 2010 Citizens United ruling that said political spending by corporations and other outside groups is protected by First Amendment free speech rights. Since that 2010 ruling, unfettered funds from wealthy individuals, dark money groups, and other special interests (including foreign entities) have flooded U.S. politics as well as airwaves and mailboxes in an effort to curry political favor. In the 2020 election, political spending topped $14 billion, including $1 billion from dark money groups, non-party organizations that dont have to disclose their donors.

But business leaders of small to midsize enterprises are largely left out of this pay-to-play game and forced to play by rules that have been influenced to benefit select industries and corporate giants. This means entrepreneurs are often left behind in the competitive marketplace and society, and on a larger scale the economy suffers from limited growth and innovation. Increasingly, this political arms race also means larger companies must donate to compete, then attempt to reconcile their lobbying and political donations with their public statements on values and societal issues.

During his career as an attorney in public and private roles, Jeff Clements watched what he calls the change in what the Constitution means, the effect of that change on people across the political spectrum, and the loss of the public commons to private enterprise. He decided he couldnt sit on the sidelines, so in 2016 he founded a nonpartisan organization called American Promise to support a grassroots movement focused on reducing the influence of money in politics.

The American Promise proposal is a constitutional amendment that would put reasonable limits on political spending and better enable politicians to act according to their constituents beliefs rather than those of wealthy donors. While an amendment may seem like an ambitious goal, Clements says a long-term change is necessary to address the dysfunctional campaign finance model that Citizens United helped create. He notes that it has support from a large majority of Americans including business leaders and legislatures in 22 states of all political stripes.

As part of my research on purpose-driven business, I recently talked with Clements about his motivations for starting American Promise, how corporations currently engage in political spending, what it takes to advance an amendment to the U.S. Constitution, and why most businesses are on board with reforming the current campaign finance system.

Chris Marquis: Share a bit about the concept behind American Promise and the role that business leaders can play in the organization.

Jeff Clements, founder of American Promise

Jeff Clements: We want to unite Americans to implement what most of us already know we need: a constitutional solution to the out-of-control money in our political system so that effective American self-government, representative democracy and free speech for all Americans is a reality. Business leaders are a key part of the American Promise strategy. At American Promise we try to serve Americans of any political stripe who want to answer this call to action we can be a provider of tools and infrastructure, a connector, or a strategic leader, but in the end constitutional amendments and whether we can get back on track is up to all Americans. It's a network strategy veterans network, business network, social worker network where this issue meets people where they live and engage with each other. They can accelerate their learning about it and peer-to-peer action around it. Business is important for this effort for a lot of reasons. One is that Citizens United and other related cases purport to be businesses friendly. Many business people are saying, No, thank you, we didnt ask for this, and its not good. Its really important that that voice be heard, so we created the American Promise Business Network.

We need to have support for this across partisan lines, and businesspeople, of course, cross partisan lines. No one in business behaves like our politicians do now. Every day, business people are listening, negotiating, resolving conflict and implementing solutions. They are influential and are used to expressing their views, usually in a civil and clear manner. We hear a great interest in taking action from a lot of business people, including the many small and midsize businesses who dont have the capital to play the money game in our broken political process.

These businesspeople want to have a voice and not only as citizens, but as professional leaders whose businesses are impacted by policy decisions. When you look at which businesses actually are able to play in this out-of-control system, its only the largest, most concentrated, most global businesses. Its not the vast majority of businesses in America.

We think that most would welcome the American Promise For Our Freedom Amendment. For example, one company involved in the American Promise Business Network is Pirelli Tire. Its a public company headquartered in Milan, but the American business is based in Georgia. They have a no-political-spending rule they dont do it anywhere in the world. And theyd like their competitors to have to play by the same rules. IBM is another company with a no-political-spending policy.

So this Business Network is important both to help us win and also to carry forward the case that this is not about business versus everyone else. If we as a society dont define rules for when business capital can be leveraged into political capital, we create a systemic dynamic where investments in political spending to control candidates and policy brings a better return than investments in innovation or competition. This enables a few industries to actively hurt the public interest to advance their business interests, either because they have more capital than anyone else or because their business model doesnt work without extracting undue advantage through political spending. We not just as businesspeople but as citizens must prevent that by enabling fair rules and guardrails.

Marquis: Since Citizens United, it seems there is an ability to circumvent individual contributions limits. Why did the Court find businesses could contribute unlimited amounts to PACs when there are limits on individuals? If corporations are people is part of the rationale, that seems inconsistent.

Clements: To be clear, the Supreme Court ruled that anyone corporations, unions, billionaires, you name it, can run unlimited money into elections to influence the outcome, even if the technical limits on direct campaign donations to the candidate still apply. The Supreme Courts theory is that, while direct contributions to candidates have a risk of corruption, so-called independent spending like the money that goes to Super PACs wont influence the candidate or officeholder. Under this theory, so-called independent spending is akin to free speech, so limiting that money cant be justified. Its a syllogism: Money facilitates speech, so money is akin to speech, and Americans should not limit speech, therefore Americans are not allowed to limit money's influence in our elections. Thats a pretty radical new interpretation of the First Amendment. And weve found that most Americans think that its a ridiculous clever lawyer theory, and not how the real world works.

Another major problem were seeing with this legal theory is that the FEC (Federal Election Commission) recently ruled that in state ballot initiatives, there is no law that prohibits foreign governments from spending money. For instance, Ottawa Power, fully owned by the Canadian government, spent $24 million to influence a ballot initiative in Maine. The CEO testified in the Maine legislature after being summoned by some irate senators. One of them asked, Could you do this in Canada? and the CEO said, Oh no Canadian elections are very serious.

Marquis: A constitutional amendment seems like a big step why the need for this instead of another approach? And why do you think the time is right for an amendment?

Clements: Over my career, I saw the top-down, lawyer-driven change in the meaning of the First Amendment and our Constitution lead to deep erosion in civic trust, government accountability, and our ability as a nation to protect the public interest or the public commons against abuses from private power. I think private enterprise is good, but it works best with democracy, checks and balances, and some rules and clarity around whats the public sphere versus the private sphere.

Heres an example: In my role with the Massachusetts Attorney Generals Office, I was involved with tobacco litigation. We were trying to enforce pretty basic laws regarding a buffer for tobacco marketing around schools. Big Tobacco targeted children with advertising outside of schools to get kids addicted because their scientists said, if you can get kids hooked at 15, you have them for life, but if you wait till 21, they're not going to be as susceptible to being a lifetime customer.

The tobacco companies sued, saying the rule against marketing cigarettes around schools and playgrounds violated their First Amendment free speech rights. They didnt debate the public policy; they just said Americans werent allowed to touch them because of the First Amendment. The argument is that targeting cartoon cigarette ads in places where children go to school is free speech. We won that case all the way up to the Supreme Court, but then we lost 5-4 in the Supreme Court case called Lorillard Tobacco Co. v. Reilly. That is a dangerous change in what free speech is supposed to be about in America.

So the reason we need a constitutional solution now is that a constitutional mistake is at the root of our problems. We are at a constitutional fork in the road. In my view, the road were on if we dont correct the Courts constitutional mistakes about money, free speech, and elections leads to oligarchy, social division and unrest, and the deep erosion of the pragmatic, dynamic, free American society. The road of a constitutional amendment gives us a better chance to navigate the challenges of the next century, where we have a responsive government and civic trust because the constitution protects the rights and interests of all Americans, not just the tiny slice of us who can deploy millions in political donations.

Marquis: In the business world, it seems some influence on the government is through organizations like the Business Roundtable, which has been saying that businesses should be focused on stakeholders like employees and other constituents as opposed to just shareholders. But if you look at their work, they lobbied for Trumps corporate tax plan, many of the companies have employees who dont earn a living wage, and other issues. What role could groups like that play in the campaign spending issue American Promise is working to address?

Clements: I think we cant judge too much based on the current system because the current system allows, or even requires, a lot of hypocrisy from those who operate in the system but would like to see it be better. Like a lot of forces, powerful groups like the members of the Business Roundtable can do damage, or they can help drive change. I think our amendment is something that the Roundtable and all business groups could support. For example, the U.S. Chamber is one of the big lobbying spenders, but some of our most committed supporters and volunteers in the Business Network are local and state leaders and members of Chambers of Commerce.

Many of the members of the Business Roundtable or the U.S. Chamber are global and at different orders of magnitude in terms of scope and scale than local and state businesses. But they too will benefit from clear, level playing field rules about political spending in America and the more responsive and responsible political culture that results from that. I hope they can get on board with this effort, too, and at least not be in opposition. When push comes to shove, and were trying to get a vote in Congress and in state legislatures, I would hope that, at a minimum, they would recognize that this is simply sound, prudent constitutional and civic law.

See more here:
In An Era Of Record Political Spending, American Promise Makes The Business Case For Constitutional Reform - Forbes

University Relations

Danielle Weatherby

In this month's Short Talks from the Hill, Danielle Weatherby, professor of law, spotlights issues that Americans are struggling with right now.

Can we express opposing viewpoints without attacking each other or threatening the First Amendment? Can parents gain more control over the education and upbringing of their children without marginalizing some students and muzzling classroom teachers?

Weatherby addresses these questions and offers commentary on what college professors can do to excel as teachers and serve their students during times of political and cultural polarization.

This gap, which probably isn't as wide as it seems, has created problems in the marketplace of ideas, including the American classroom, Weatherby says. One problem is so-called "speech narcissism."

"Speech narcissism is a term that characterizes what I perceive to still be a serious American problem and one of the reasons why we as a country are as polarized as we seem to be today and often find ourselves at an impasse on matters of public policy," Weatherby says in the podcast. "What I mean in the research is that the narcissism reflects the sort of egotism or fixation with one's own worldview and life experiences that makes us essentially unable to listen to opposition viewpoints. Instead of being open to different perspectives, speech narcissism is causing us to vilify individuals who express opposing viewpoints, leading essentially to a chilling effect in discourse and a breakdown in communication and in the exchange of ideas."

Weatherby's research focuses on the intersection of religious exercise and public accommodation laws and First Amendment jurisprudence and its impact on student speech, education law and legal protections for transgender individuals.

To listen to her discuss these issues, click the link above or go to Arkansas Research, the home of research and economic development news at the University of Arkansas.

Short Talks from the Hill highlights research, scholarly work and economic development news. Previous podcasts can be found at the link above or by visiting arkansasresearch.uark.edu.

Thank you for listening!

Original post:
Short Talks: 'Don't Say Gay' and the Polarizing Effect of Speech Narcissism - University of Arkansas Newswire

The end of the past Supreme Court term saw the release of three decisions that carry life-and-death consequences: Dobbs v. Jackson Womens Health, which overturned Roe v. Wade; New York State Rifle & Pistol Association v. Bruen, which rejected efforts to curb gun violence; and West Virginia v. E.P.A., which curtailed the federal agencys ability to protect the environment. A fourth major decision of those final weeks may not hold life in the balance, but it will have radical and far-reaching consequences for the First Amendment and religious speech.

The decision in Kennedy v. Bremerton School District, written by Justice Neil Gorsuch, holds that a public-high-school football coach has a constitutional right to publicly pray at the fifty-yard line after games. Using the words quiet or quietly ten times to describe the coachs prayers, Gorsuch dismisses any concerns that students may feel coerced to join him, as long as they are not expressly compelled to do so. The coachs conduct, Gorsuch finds, in an opinion joined by Justices John Roberts, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, is fully protected by the First Amendment.

The First Amendment, of course, states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The establishment clause, which was cited by the school district, has traditionally been interpreted to prohibit government action that compels religious conduct, favors one religion over another, or endorses religion over non-religion. But Justice Gorsuch makes the astonishing claim that, because prayer is protected by both the speech and the free exercise references, it is doubly protected. This double protection means that the School Districts concern that the coachs prayers run afoul of the establishment clause is outgunned, two clauses against one. Does this mean that if I (1) petition the government to (2) hold a rally supporting the (3) printing of a pamphlet about my (4) new religion, Id be quadruply protected and could thereby trump other constitutional provisions, such as the equal protection clause of the FourteenthAmendment? The math quickly becomes absurd.

Burt Neuborne, a professor at New York Universitys School of Law, makes the compelling argument that the structure of the First Amendment is no accident. It is not a mere list of protected activities to be added to and subtracted from one another; rather, its language tracks how political ideas move from internal thought and belief to external conduct. First comes personal conviction, then public discussion and dissemination, and, finally, political action. The goal is the free expression of political will, which is essential to a functioning democracy. Neubornes analysis confirms what many media and First Amendment lawyers consider a truism: political speech is at the core of the First Amendments protections.

Protecting political speech, including speech that criticizes government officials, was the primary justification in the Supreme Courts unanimous landmark 1964 decision in New York Times Co. v. Sullivan, which holds that government officials need to meet a very high burden of proof to succeed in defamation claims. In that decision, Justice William Brennan reasoned that, because political speech is central to democracy, debate on public issues should be uninhibited, robust and wide-open. According to Justice Gorsuchs opinion, however, that long-held understanding of the central purpose of the First Amendment is wrong. In his view, it is government suppression of religious speech that is the core concern of the First Amendment, and what it was designed to protect against. Further, Gorsuchs finding that religious speech is doubly protected implies that political speechsay, about voting rights or womens rightsis only single protected.

This reasoning reveals a disturbing strain of thought: the idea that religion is under siege, and that religious speech and religious conduct in the public sphere need to be privileged. Gorsuch, in his opinion, inveighs against a government being hostile to religion. He specifically objects to the idea that we might preference secular activity over outward displays of religiosity. Instead of considering how secularism might make government activity neutral, open to believers of various faiths as well as nonbelievers, his thinking seems to be that, because of religious speechs double protection, it must take precedence. Anything less is an unconstitutional assault on religion.

Gorsuch employs the cartoonishly circular argument that, because the Bremerton School District, in Washington State, didnt want the coach to conduct prayers with his team, it clearly does not see that behavior as part of his official duties and, therefore, his praying is private religious conduct, which must be protected from government restrictions. By that logic, any religious conduct by government employees that is not part of their official dutiesa D.M.V. clerk, say, who gives out religious literature to people applying for drivers licenses, or a clerk who tries to convince gay couples that their marriage is sinfulwould become protected speech.

Gorsuch argues that, if visible religious conduct of government employees is banished, then teachers will be prohibited from wearing yarmulkes or saying a prayer of thanks over a sandwich in the break room. The fact that theres no evidence that any government office has sought to stop an employee from saying grace over their own lunch notwithstanding, that argument is a false equivalence. Such personal conduct is worlds apart from that of a coach, who may be responsible for making college or scholarship recommendations for the students on his team, openly conducting a religious practice on the field, while players and families are watching. Gorsuch writes that there was no coercion, because students were not required to participate. (Justice Sonia Sotomayor, in a dissent, included multiple photographs showing the coach kneeling in prayer surrounded by players that are evocative of a revival meeting. Even if those students willingly joined their coach in prayer, its likely that some students feigned belief, or felt excluded by choosing not to join the ritual.) Furthermore, the law recognizes all kinds of situations in which implied promises or threats are sufficient grounds for legal sanctions. Ask any first-year prosecutor whether an explicit threat is necessary to bring an extortion charge.

But religious maximalism is currently all the rage on the Supreme Court. Justice Alitos opinion overturning Roe goes out of its way to dig up arcane historical references to prove that the drafters of the Constitution didnt intend to protect abortion. But there is an inescapable sense that the Justices acceptance of the validity of the belief that life begins at conception is determined by his personal religious views. Alito, too, has publicly bemoaned hostility toward religion, which he calls secular orthodoxy, and blamed it for what he calls anti-Catholic prejudice. Justice Barrett and her family have been affiliated with People of Praise, an insular conservative Catholic group that rejects homosexuality; practices ecstatic Christian traditions, such as speaking in tongues; and is described as a covenant community. She testified during her Senate confirmation hearing that her religious beliefs do not influence her jurisprudence, but also that she did not view Roe as a super precedent. Clearly, most Justices have religious beliefs, and there are both liberal and conservative Catholicsno one should say that religious beliefs determine political affiliation. Still, the idea that religious speech (and necessarily, activity) must be protected over and above other kinds of speechor over secularism generallyis grounded in a belief about the importance of religion in public life. But what will happen if government employees must be free to express and act upon their religious convictions in their jobs? How does a pluralist society function in that case?

Chief Justice John Roberts famously bristled at the idea that there are Obama judges or Trump judges, insisting that members of the federal judiciary do their level best to be fair to those who appear before them. (When I was in law school, there was no quicker way to get cut down by a professor than to cite the Justices political leanings as an explanation for why they had reached a particular decision.) But perhaps a clearer distinction exists between Justices who believe that the constitutional guarantee of free exercise of religion means that government employees must be able to wield their religious beliefs unconstrained, and those who believe that, in a pluralist society, people have the right not to have the religion of others foisted upon them by government employees. As the old saying goes, Your right to swing your arms stops where my nose begins. Telling government employees to stop swinging their religion at the public should not be unconstitutional.

The rest is here:
Justice Neil Gorsuchs Radical Reinterpretation of the First Amendment - The New Yorker

In yesterday's decision in Doe v. Dordt Univ., Judge C.J. Williams (N.D. Iowa) allowed much of Doe's unfair-Title-IX-discipline claim to go forward; the decision is long, but here's an excerpt to give the flavor of the dispute:

First, a reasonable jury could find that the undisputed evidence shows an articulable doubt as to the accuracy of proceeding's outcome based on the finding of sexual assault. "Courts should not second guess the disciplinary decisions that school administrators make." But Title IX precludes school administrators from rooting those disciplinary decisions in a gender-biased policies and procedures.

It is undisputed that A.D., a witness in Doe's proceeding, told Dean Taylor that she had been "made aware of the fact that [S.S.]," another witness, "ha[d] been blackmailing [another witness] involved in the investigation" and asked to meet with Dean Taylor. Doe also shared with investigators, including Dean Taylor, that he thought S.S. had an agenda against him and had instructed J.B. not to speak with him.

Doe stated that J.B. told him that S.S. threatened to report J.B.'s marijuana use if he did not testify against Doe in the Title IX investigation. Dean Taylor was also aware that S.S. had convinced J.B. to participate in the investigation after he initially did not want to.

Nevertheless, based on the undisputed evidence, the allegations of blackmail were not prioritized. Dean Taylor did not appear concerned with the blackmail reports, though he stated that blackmail might mean an innocent respondent, and did not recall taking any further steps to investigate the blackmail issue after the meeting with A.D. Further, the information about Doe's and A.D.'s disclosures were not included in the Investigative Summary or otherwise shared with the SLC for their consideration during deliberation. Additionally, because the investigators did not investigate the blackmail allegations and report their findings, Coordinator Wilson could not consider this information or mention it in his recommendations to the SLC.

Defendants argue that S.S.'s alleged blackmail was inconsequential to Doe's investigation and proceedings because S.S. only wanted J.B. to tell the truth. Defendants also argue that S.S. wanted Doe to be punished for his alcohol use. Given that S.S. gave the initial report that Doe sexually assaulted Roe, however, it is apparent that she knew his discipline would, at least possibly, be for violations other than alcohol. And because investigators did not mention the blackmail reports in the Investigative Summary, the SLC was not provided with reasons to believe that S.S. only wanted J.B. to tell the truth. Further, the SLC did not have the opportunity to ask Doe or anyone else about the blackmail. Although defendants argue that plaintiff has no evidence that S.S. pressured J.B. to lie to investigators, a reasonable jury could find that the very nature of blackmail implies that the person being blackmailed must do something the blackmailer wants or face negative consequences and that the circumstances thus call the accuracy of the investigation and Doe's discipline into question.

This fact is particularly troublesome in light of the undisputed fact that J.B. was the last person to see Doe and Roe before their sexual encounter and, thus, had key insight into Roe's level of intoxication. A reasonable jury could further find that a blackmailed party, faced with these negative consequences, might have a motive to state what the blackmailer wanted him to say, whether that statement was true, partially true, or entirely false.

Thus, a reasonable jury could find S.S.'s alleged blackmail of J.B. caused J.B. to possibly have a motive to lie during Doe's proceedings and that the SLC's inability to review this information creates an articulable doubt as to the accuracy of the proceeding's outcome.

Further, although defendants argue it is merely speculative that Roe had a motive to lie, the jury could reasonably infer from the undisputed facts that Roe possessed such a motive. According to the Handbook, violations of the sexual misconduct policy could constitute grounds for dismissal.

The Handbook also made it a conduct violation for students under the age of 21 to consume alcohol, meaning Roe could face discipline for her underage alcohol consumption in addition to sexual misconduct if the encounter was consensual. But it also provided amnesty for an alcohol violation for any student making a good faith report of sexual misconduct, whether as a student with a complaint or a witness.

It is also undisputed Roe did not initially believe she was raped, and did not report her rape, though she did proceed with the investigation as the reporting party. According to the Handbook's provisions, however, had she not reported or shared information about the sexual assault, she would be at risk for a misconduct violation that could get her dismissed from Dordt.

A reasonable jury could also find particular procedural flaws call into question the accuracy of Doe's sexual assault finding. For instance, Dean Taylor testified that Dordt's policies did not distinguish between inebriation, intoxication, and incapacitation, although Roe's alleged incapacity due to her consumption of alcohol was the only enumerated reason that would render her verbal consent invalid. Relevant factors to incapacity, including food consumption, intake of non-alcoholic fluids, timeline of consumption, and body weight, were also not considered during the process.

Additionally, several conflicts of interest were either not discussed at all or not shared with the SLC. Dean Taylor, who would become a lead investigator in Doe's case, informed Mark Volkers, who taught Roe, that Roe had been involved in a "traumatic incident" before Volkers was named as a member of Doe's SLC. During Roe's first interview, Dean Taylor believed he was serving in capacity as dean, making him Roe's caretaker, even though this interview was part of the active investigation in which Dean Taylor was an investigator.

Finally, S.S. was Chair Olson's student. Before S.S.'s former interview, S.S. and Chair Olson had a "vague" conversation about Roe's assault and the allegations against Doe, a conversation Chair Olson told S.S. was best not to mention at her formal interview. Considering S.S. was the student A.D. and Doe believed was blackmailing J.B., a reasonable jury could find Chair Olson's failure to disclose her relationship with S.S., this conversation, and her suggestion to not mention the conversation, were procedural conflicts and concerns that further call into question the accuracy of Doe's sexual assault finding.

In sum, the undisputed evidence could support a jury finding of articulable doubt as to the accuracy of the outcome of Doe's Title IX proceeding based on the finding of sexual assault.

[A] reasonable jury could find that the undisputed evidence shows particular circumstances showing gender bias were a motivating factor in the erroneous outcome.

And here's the court's reaction to the university's First Amendment defense:

Defendants cite the recent Supreme Court case Our Lady of Guadalupe Sch. v. Morrissey-Berru (2020), for the principle that First Amendment insulates Dordt from incurring liability for discrimination when that alleged discrimination is founded on the university's religious beliefs and corresponding practices and policies.

The Court finds Our Lady of Guadalupe is inapposite to the case at issue here. There, the issue was employment discrimination and whether the teachers in question could be considered ministers for purposes of the ministerial exception to the First Amendment. The ministerial exception provides that "courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions." Here, the issue is sexual discrimination based on student disciplinenot an employment dispute. Thus, the Court declines to find that Our Lady of Guadalupe shields defendants from liability as to its discrimination of Doe.

Congratulations to Adrienne Levy, Andrew Miltenberg, and Stuart Bernstein of Nesenoff & Miltenberg LLP, and to David Goldman of Babich Goldman, PC, who represented plaintiff.

More here:
Title IX, First Amendment, Religious Universities, and Alleged Blackmail - Reason

from the you-can-protect-children-without-infringing-on-the-1st-amendment dept

California has officially joined the growing list of states attempting to regulate how social media companies run their platforms. The states proposed legislation, however, faces a major legal obstacle: the Constitution.

California lawmakers are marching ahead with AB 2408, the Social Media Platform Duty to Children Act. On June 28, the Judiciary Committee unanimously passed an amended version of the bill, tweaking several provisions. Next, AB 2408 must pass the Senate Appropriations Committee and the California Senate before governor Gavin Newsom may sign the bill into law.

AB 2408 would impose a duty on social media platforms to avoid addicting minor users. Although protecting minors is a noble cause, regulating how social media design their services likely violates the First Amendment, which protects platforms right to curate content based on their editorial discretion.

As with most bills, the devils in the details. AB 2408s structure and prohibitions would limit platforms abilities to arrange and moderate content for minors.

AB 2408 defines Addict as the act of knowingly or negligently caus[ing] addiction through any act or omission. The bill defines Addiction as use of one or more social media platforms resulting in preoccupation or obsession with, or withdrawal or difficulty to cease or reduce use in addition to physical, mental, emotional, developmental, or material harms to the user.

The bill allows the Attorney General to sue social media platforms for implementing a design, feature, or affordance which leads to addiction. To prevail under AB 2408, a plaintiff must prove that a minor became addicted and was therefore harmed, that a design or feature on the platform was a substantial factor in the addiction, and that it was reasonably foreseeable that the design or feature would lead to addiction.

A recent amendment removed a private right of action which would have allowed minor users and parents to sue platforms directly. Lawmakers also changed the definition of social media platform. The amendments, however, do little to change the bills constitutionality.

In short, AB 2408 aims to prohibit social media platforms from building features which the platforms know, or ought to know, will result in addiction for minors.

In general, social media platforms design features to make their platforms more useful or enjoyable. For example, any internet platform worth its salt uses algorithms to display, recommend, and tailor content based on a users browsing activity and interests. By restricting how social media companies build and use these features, AB 2408 interferes with their editorial discretion by limiting how platforms display and amplify content.

AB 2408 appears less objectionable than the social media regulations currently brewing in Texas and Florida, which are geared towards forcing platforms to host conservative content. Ultimately, however, all three bills seek to regulate how social media platforms moderate content. Its unlikely these bills withstand First Amendment challenges.

Texass and Floridas social media bills are already running into trouble in court. On May 31, the Supreme Court suspended Texass HB20, reimposing a preliminary injunction on enforcement of the legislation.

Just eight days earlier, the U.S.federal Court of Appeals for the Eleventh Circuit held that Floridas social media bill violates the First Amendment. Circuit Judge Kevin Newsom explained: Put simply, with minor exceptions, the government cant tell a private person or entity what to say or how to say it.

The court concluded that social media platforms content-moderation decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms ability to engage in content moderation unconstitutionally burden that prerogative.

Proponents of AB 2408 argue that the bill only regulates business conduct, not speech. But limiting platforms abilities to build features used to display content implicates their constitutionally protected editorial judgment.

In Reno v. ACLU, the Supreme Court applied the First Amendment to the Internet, striking down provisions of the 1996 Communications Decency Act which criminalized the intentional transmission of obscene or indecent messages and information depicting or describing sexual or excretory activities or organs in an offensive manner. The Court found no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet.

Twenty years earlier, in Miami Herald v. Tornillo, the Supreme Court held that the government cannot regulate a newspapers choice of material or the decisions made as to limitations on the size and content of the paper.

Social media features designed to display content to users are analogous to newspaper editors dictating the size and content of their paper. Just as it protects newspapers, the First Amendment likely limits Californias authority to punish Internet platforms for their editorial decisions related to displaying and arranging content on their services. Consequently, AB 2408 faces the same First Amendment roadblocks as the Texas and Florida bills.

Protecting children is important. Thats undeniably true. Lawmakers, however, must pursue these policy objectives within the confines of the Constitution.

Andy Jung is a Legal Fellow at TechFreedom, a non-profit, non-partisan think tank focused on technology law and policy. Andy received his law degree from Antonin Scalia Law School in Arlington, VA. Before law school, Andy worked for software startup companies in California.

Filed Under: 1st amendment, ab 2408, addiction, california, content moderation, for the children, protect the children, social media

Continued here:
California's Social Media Bill Flies In The Face Of The First Amendment - Techdirt

In November 2020, a 2-1 Eleventh Circuit panel decision inOtto v. City of Boca Ratonconcluded:

Boca Raton and Palm Beach County prohibit therapists from engaging in counseling or any therapy with a goal of changing a minor's sexual orientation, reducing a minor's sexual or romantic attractions (at least to others of the same gender or sex), or changing a minor's gender identity or expressionthough support and assistance to a person undergoing gender transition is specifically permitted. These restrictions apply even to purely speech-based therapy. We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.

(See Jonathan Adler's post on the case.) Today, the Eleventh Circuit denied en banc rehearing, with several judges writing to concur or to dissent on that point; I'm slammed right now and can't quickly summarize or excerpt the opinions (which take up 110 pages), but I thought I'd link to them for the benefit of readers who are interested in looking through them.

Original post:
Eleventh Circuit Opinions on the First Amendment and Bans on "Conversion Therapy" for Minors - Reason

Editors note: A previous version of this story described Amber Krabach as being sympathetic to QAnon. Krabach has denied association with the conspiracy theory and political movement. As reported by Crosscut, Krabach has posted QAnon messages and images on social media, including the movements slogan: where we go one, we go all.

Amber Krabach, Republican legislative candidate, is defending the presence of signs littered across King Countys ballot drop boxes that claim this ballot box is under surveillance.

Krabach, a Republican state House candidate from Woodinville, has posted QAnon-related memes and tweets, sometimes under a hashtag that abbreviates the QAnon rallying cry, Where We Go One, We Go All. Krabach is running as a third party against incumbent state Rep. Larry Springer, D-Kirkland, in the 45th Legislative District, and Republican candidate John Gibbons.

After the signs started appearing next to ballot drop boxes across the Seattle area, many officials were quick to call the signs voter intimidation, but now the former King County GOP Elections Integrity Commission (EIC) chair Krabach says the signs were just an effort to inform the public of the law and to provide accurate information about how to report concerns.

On the signs were big red letters, reading this ballot drop box is under surveillance, and accepting compensation for harvesting or depositing ballots may be a violation of Federal Law, along with a QR code leading to the election incident report on the King County GOP website.

When brought to their attention, Michael Patrick Thomas, Chair of the King County Republican Party, said party officials were unaware of the signs. Thomas said they were created by the EIC and they had acted outside of its authority and without the express knowledge, permission, or consent of the King County Republican Party.

Krabach disputes the GOP chair though, asserting that the honorable EIC was never affiliated with the signage project, and the dissolution of the committee was unjustified.

The EIC has long been working toward increasing the election integrity in the county though, Krabach said, with fears of voter fraud at an all-time high across the country. A poll done by PolitiFact in June 2022 shows that 70% of Republicans believe there was some voter fraud in the 2020 election.

King County Elections conducts some of the safest and most secure elections anywhere in our nation, and these intimidation tactics are a direct extension of the anti-democratic rhetoric behind The Big Lie, King County Executive Dow Constantine said. Voter intimidation is a state and federal crime, and Ive directed Sheriff Cole-Tindall to investigate.

Under surveillance ballot-box signs likely voter intimidation, officials say

This is not enough to ensure the election integrity, and the EIC was put in place to advocate for voter increasing security, says Krabach.

King County has been asked numerous times to add security cameras to the 75+ drop boxes around our county because there is simply no way to effectively monitor them otherwise, Krabach said. They have outright refused to provide this service to the public. The surveillance sign project was a private, salutary effort to inform the public of the law and to provide accurate information about how to report concerns.

To back up her claims that the signs were completely legal, Krabach points to the election observer program that is already run by the city. In the program, volunteers from both political parties are invited to observe the opening and recording of ballot information, but not the actual drop boxes in the city.

It is not voter intimidation, or otherwise unlawful, to provide basic, factual information about federal election law, Krabach said. Any assertion to the contrary is inappropriate, and has the appearance of intending to keep voters, and the public at large, from being aware of this information

While observing the drop boxes is not illegal, the Washington Secretary of States office points out that if people feel their access is impeded, or are not comfortable casting their ballot, then it might be considered voter intimidation.

There are many ways curious or concerned voters can observe and engage in our electoral process. However, voter intimidation is not one of them, King County Prosecutor Dan Satterberg said. Washington law permits voters to drop off ballots for others.Signs intended to make voters feel like they are being watched and monitored and violating the law by depositing ballots is voter intimidation, period.

While city officials have removed the signs, Krabach is not happy with how the situation has been handled.

Instructing their employees to steal these signs is not only a violation of my First Amendment rights to free speech and free expression but also a flagrant theft of private property, Krabach said. With county and state officials now joining in to target citizen observers, while silencing their speech and trying to intimidate them out of their efforts to obtain assurance of election integrity, Id like to know if this seemingly tyrannical pile-on is really something they believe will increase voter confidence in our election process.

Elections officials called the placement of the signs serious offenses that would be fully investigated, so those who posted them would be held accountable.

See the article here:
Violation of my First Amendment rights, House candidate says of removal of election surveillance signs - MyNorthwest